Karnataka High Court

Mallappa vs Bheemarao on 3 March, 2022

Bench: J.M.Khazi

                              1         MFA.No.201962/2017
                                    c/w MFA.No.201963/2017



IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

        DATED THIS THE 3RD DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MS. JUSTICE J.M.KHAZI

              MFA.No.201962/2017 (MV)
                         c/w
              M.F.A.No.201963/2017 (MV)

  IN M.F.A.No.201962/2017:

  BETWEEN:

  01.   SANGAPPA
        S/O MALLAPPA NIMBAL
        AGE: 49 YEARS
        OCC: AGRICULTURE

  02.   BHAGIRATHI
        W/O SANGAPPA NIMBAL
        AGE: 47 YEARS
        OCC: HOUSEWIFE

  03.   PRAVEEN
        S/O SANGAPPA NIMBAL
        AGE: 24 YEARS
        OCC: NIL

  ALL ARE R/O TAMBA, TQ: SINDAGI
  DISTRICT VIJAYAPUR
  NOW R/AT IBRAHIMPUR, VIJAYAPUR.
  PIN CODE NO:586 101

                                           ... APPELLANTS
  (BY SRI. BABU H. METAGUDDA, ADVOCATE)
                             2            MFA.No.201962/2017
                                     c/w MFA.No.201963/2017



AND:
01.    BHEEMARAO
       S/O VITTAL NANAVARE
       AGE: 44 YEARS
       OCC: BUSINESS
       R/O MADDINAMADDI, TQ: ATHNI
       DISTRICT BELAGAUM
       PIN CODE NO:586 101.


02.    THE MANAGER LEGAL
       TATA AIG GENERAL INSURANCE CO. LTD
       PENNISULA BUSINESS PARK TOWER A,
       15TH FLOOR, GANAPATHRAO KADAM MARG
       OPP: SENAPATI, BAPATE MARG, LOWER PAREL
       MUMBAI, PIN CODE NO:400 013.
                                         ... RESPONDENTS

(BY SRI. S.S. ASPALLI, ADVOCATE FOR R2 V/O DT: 26.03.2018, NOTICE TO R-1 IS DISPENSED WITH)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT, 1988 PRAYING TO a) CALL FOR RECORDS IN MVC.NO.2145/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL NO.V AT VIJAYAPUR; b) ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD DATED 04.02.2017 PASSED IN MVC.NO.2145/2013 BY THE PRINCIPAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL NO.V AT VIJAYAPUR AND ENHANCING THE COMPENSATION FROM Rs.4,12,500/- WITH 9% INTEREST TO Rs.14,99,000/- WITH 12% INTEREST; AND c) GRANT SUCH OTHER AND FURTHER RELIEF'S AS THIS HON'BLE COURT DEEMS FIT IN CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

IN M.F.A.No.201963/2017:

BETWEEN:

MALLAPPA S/O SIDDAPPA GANGANALLI

c/w MFA.No.201963/2017

AGE: 44 YEARS OCC: VETERINARY OFFICER R/O TAMBA, TQ: SINDAGI DIST: VIJAYAPUR NOW R/AT VIJAYAPUR PIN CODE NO: 586 101.

... APPELLANT (BY SRI. BABU H. METAGUDDA, ADVOCATE)

AND:

01. BHEEMARAO S/O VITTAL NANAVARE AGE: 44 YEARS OCC: BUSINESS R/O MADDINAMADDI, TQ: ATHANI DIST: BELAGAUM PIN CODE NO:586 101.

02. THE MANAGER LEGAL TATA AIG GENERAL INSURANCE CO. LTD PENNISULA BUSINESS PARK TOWER A, 15TH FLOOR, GANAPATHRAO KADAM MARG OPP: SENAPATI, BAPATE MARG, LOWER PAREL MUMBAI, PIN CODE NO:400 013.

... RESPONDENTS

(BY SRI. S.S. ASPALLI, ADVOCATE FOR R2 V/O DT: 26.03.2018, NOTICE TO R-1 IS DISPENSED WITH)

THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173 (1) OF THE MOTOR VEHICLES ACT, 1988 PRAYING TO a) CALL FOR RECORDS IN MVC.NO.2157/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL NO.V AT VIJAYAPUR; b) ALLOW THIS APPEAL AND MODIFY THE JUDGMENT AND AWARD DATED 04.02.2017 PASSED IN MVC.NO.2157/2013 BY THE PRINCIPAL SENIOR CIVIL JUDGE AND MOTOR ACCIDENT CLAIMS TRIBUNAL NO.V AT VIJAYAPUR AND ENHANCING THE COMPENSATION FROM Rs.10,000/- WITH 9% INTEREST TO Rs.14,99,000/- WITH 12% INTEREST; AND c) GRANT SUCH OTHER AND FURTHER RELIEF'S AS THIS HON'BLE COURT DEEMS FIT IN CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

c/w MFA.No.201963/2017

THESE APPEALS BEING HEARD AND RESERVED FOR JUDGMENT ON 03.02.2022, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

COMMON JUDGMENT

These two appeals are arising out of a common

judgment and award in MVC.Nos.2145, 2157 and

2158/2013, which were arising out of an accident dated

26.10.2013, involving Mahindra Bolero Jeep bearing

Registration No.KA-17/B 2876 and lorry bearing

Registration No.KA-28 5523, which is hereinafter referred

to as offending vehicle. Therefore, these two appeals are

being disposed of by a common Judgment.

2. For the sake of convenience the parties are

referred to by their rank before the trial Court in the

respective cases.

3. The facts leading to the filing of claim petitions

are that on 26.10.2013, Rajashekar claimant in

MVC.2158/2013, his brother Mallappa, who is claimant in

MVC.2157/2013 and deceased Prakash Nimbal were

c/w MFA.No.201963/2017

traveling in Mahindra Bolero jeep bearing Registration

No.KA-17/B 2876. It was driven by deceased Prakash

Nimbal. When they were near Konnalli village, accident

occurred due to the rash or negligence driving of the

offending vehicle which came from the opposite side.

Prakash Nimbal died on the spot, whereas Mallaiah

sustained injuries and the jeep was also damaged.

4. Claimants in MVC.2145/2013 are the parents

and brother of deceased Prakash Nimbal.

5. Mallaiah filed MVC.2157/2013 seeking

compensation for the personal injury sustained by him.

Rajashekar who is the owner of the Mahindra Bolero jeep

filed Claim Petition No.2158/2013 for recovery of damages

caused to the jeep. In these two appeals, this Court is not

concerned with MVC.2158/2013. Therefore, only reference

is made to the party in MVC.No..2145/2013 and

2157/2013.

c/w MFA.No.201963/2017

6. It is pertinent to note that in the claim

petitions, claimants have not chosen to array the insurer of

Mahindra Bolero Jeep and no compensation is claimed as

against the coverage of the said vehicle. Only the owner

and insurer of the offending vehicle are made as parties.

7. In the written statement, respondent No.1

denied the allegations that the accident occurred due to

the rash or negligent driving by the driver of the offending

vehicle. He allege that the accident was due to the rash or

negligent driving by the deceased Prakash Nimbal.

However, he has pleaded that at the time of accident, the

offending vehicle was covered by a valid policy issued by

respondent No.2 and in the event of granting

compensation, respondent No.2 Insurance company may

directed to pay the same.

8. Respondent No.2 admitted the coverage of the

offending vehicle. However, it has specifically alleged that

accident was due to the rash or negligent driving by the

driver of the jeep in question. It also took up the

c/w MFA.No.201963/2017

contention that the driver of the offending vehicle was not

holding a valid and effective driving licence and ultimately,

the liability if any subject to the terms and conditions of

the policy.

9. In MVC.No.2145/2013, the mother of the

deceased was examined as PW-1. The claimant in

MVC.2157/2013 is examined as PW-3. Ex.P1 to 19 were

marked concerning all the three petitions.

10. Considering the oral and documentary

evidence placed on record, the Tribunal has come to the

conclusion that accident occurred due to the rash or

negligent driving by the driver of both Mahindra Bolero

jeep as well as the offending vehicle and as such the

contributory negligence was equal and therefore, the

Tribunal held that respondent No.1 and 2 being the owner

and insurer of the offending lorry are liable to pay only

50% of the compensation. Since, the insurer of the

Mahindra Bolero jeep is not arrayed as party, the claimants

c/w MFA.No.201963/2017

are not entitled for the remaining 50% of the

compensation.

11. The appellants who are claimants in

MVC.2145/2013 and 2157/2013 have not seriously

disputed the findings of the Tribunal with regard to the

contributory negligence of the jeep driver i.e., deceased

Prakash Nimbal. They have mainly concentrated on the

quantum of compensation that has been granted by the

Tribunal.

12. Even otherwise considering the spot

panchanama and sketch Ex.P2 and IMV report concerning

the Mahindra Bolero jeep as well as the offending vehicle,

the Tribunal has clearly observed that the place of the

accident was northern half portion of the road, which is the

wrong side of the Mahindra Bolero jeep and after the

impact, the jeep has traveled towards north-west direction

for a distance of 50 ft and halted in the land of one

Siddalingawwa and these aspects clearly indicate that it

was the jeep driver, who came on the wrong side and

c/w MFA.No.201963/2017

dashed against the offending vehicle and therefore the

Tribunal has correctly assessed the contributory negligence

by the offending vehicle to the extent of only 50% and

remaining contributory negligence is fastened on the driver

of the Mahindra Bolero jeep. I find no reason to interfere

with the said conclusions.

13. In view of this, now it is to be examined

whether the compensation paid is just or is there any

scope for interference. So far as MFA.No.2001962/2017

(MVC.No.2145/2013) is concerned. Admittedly deceased

Prakash Nimbal was a bachelor and therefore 50% of his

income is deducted towards his living and personal

expenses by the Tribunal is correct. Claimants 1 and 2 are

the parents of the deceased, whereas claimant No.3 is an

adult independent brother of the deceased. Therefore, the

Tribunal has rightly considered claimant Nos.1 and 2 as

the parents and claimant No.3 as the major brother of the

deceased as his legal representatives. Though all the three

claimants are held to be the legal representatives of the

c/w MFA.No.201963/2017

deceased, while apportioning the compensation, the

Tribunal has refused to allot any portion of the

compensation to claimant No.3 and has granted only

compensation to claimants Nos.1 and 2.

                      Heads                       Amount
                                                   In Rs.
      Loss of dependency                          7,65,000/-
      Loss of love and affection                    30,000/-
      Transportation of dead body                   10,000/-
      Funeral expenses                              10,000/-
      Loss of estate                                10,000/-
      Total                                       8,25,000/-

14. As rightly held by the Tribunal, the claimants

have not produced any documents to show the exact

income of the deceased and therefore, the income of the

deceased is considered based on notional income. Since

the incident has taken place on 26.10.2013, as per the

chart of KSLSA, which is based on minimum wages, during

2013, the minimum income is Rs.7,000/-. However, the

Tribunal has taken the notional income as Rs.7,500/-.

Since, the Insurance company has not challenged the said

aspect, I hold that the notional income taken by the

c/w MFA.No.201963/2017

Tribunal is correct and I am not inclined to reduce to

Rs.7,000/- p.m.

15. As per the PM report, the age of the deceased

is 27 years and the same is considered by the Tribunal is

correct. Having regard to his age, the multiplier 17 taken

by the Tribunal is also appropriate. Though, the Tribunal

has calculated the loss of dependency based on the

notional income of the deceased, but it has not considered

loss of future prospects. As per Pranay Seti's case which

is reiterated in Magma case, since the deceased was a

private employee and at the time of his death he was less

than 40 years, 40% of his income is to be added towards

loss of future prospects. 40% of Rs.7,500/- comes to

Rs.3,000/-. Together the notional income of the deceased

comes per month to Rs.10,500/-. If this amount is

multiplied by 12 x 17 and after deducting 50% towards

personal and living expenses, the remaining 50% is to be

taken into consideration for calculating the loss of

dependency, i.e, 10,500 x 12 x 17 x 50%=Rs.10,71,000/-.

c/w MFA.No.201963/2017

16. The Tribunal has granted Rs.30,000/- under

the head of love and affection. Since the claimant Nos.1

and 2 are the parents, they are entitled for Rs.40,000/-

each under the head loss of consortium and therefore,

instead of granting compensation under the head love of

affection, Rs.80,000/- is granted under the head loss of

parental consortium.

17. The Tribunal has granted Rs.10,000/- towards

transportation charges and Rs.10,000/- under the head

funeral expenses. However, as per Pranay Seti's case, in

the absence of evidence to the contrary funeral expenses

which includes transportation charges is to be confined to

Rs.15,000/- and therefore instead of Rs.20,000/- under

these two heads, Rs.15,000/- is granted under the head

funeral expenses. Under the conventional head of loss of

estate, the Tribunal has granted Rs.10,000/-, which is

increased to Rs.15,000/- as per the decision of the Pranay

Seti's case. Thus, in all the claimants are entitled for

Rs.11,81,000/- as against Rs.8,25,000/- granted by the

c/w MFA.No.201963/2017

Tribunal. Since, respondent No.2, being the insurer of the

offending vehicle is liable to pay only 50% of this, it comes

to Rs.5,90,500/-. Thus, the compensation payable to

claimants in MVC.No.2145/2013 is increased to

Rs.5,90,500/- as against Rs.4,12,500/- granted by the

Tribunal.

            Heads            Amount          Amount
                           granted by      granted by
                          the Tribunal     this Court
                              In Rs.          In Rs.
       Loss          of     7,65,000/-      10,71,000/-
       dependency
       Loss of love          30,000/-             -
       and affection
       Loss          of                       80,000/-
       parental                -
       consortium
       Transportation        10,000/-             -
       of dead body
       Funeral               10,000/-         15,000/-
       expenses
       Loss of estate        10,000/-         15,000/-
       Total               8,25,000/-         11,81,000
                50% of Rs.11,81,000 is 5,90,500/-



      18.      Now    coming         to   MFA.No.2000193/2017

(MVC.No.2157/2013), in this petition, claimant Mallaiah is

seeking compensation for the personal injury sustained by

him. Though the discharge summary at Ex.P16 state that

c/w MFA.No.201963/2017

the claimant was in-patient for 5 days i.e., from

26.10.2013 to 30.10.2013, the claimant has not produced

the wound certificate and therefore, the Tribunal as well

this Court is not in a position to ascertain the nature of

injury sustained by him. The Tribunal has also observed

that two medical bills bearing No.6878 dated 26.10.2013

for Rs.5,000/- and bill No.11203 dated 27.10.2013 for

Rs.5,000/- cannot be considered as they are only advance

payment for in-patient department. In respect of the

same, final bill is not produced. Further, the Tribunal has

observed that in respect of medical bill 9868 dated

29.10.2013 for Rs.1,091/-, it is not issued in the name of

claimant Mallappa, but after putting whitener, the name of

Mallappa has been inserted. Similarly, the medical bill

10561 dated 30.10.2013 for Rs.14,300/- cannot be

considered as there is no description for the said bill and

without any detail particulars, it has been issued. Taking

into consideration these aspects, the Tribunal has refused

grant compensation under the said bills.

c/w MFA.No.201963/2017

19. In the absence of wound certificate and valid

medical bills, the Tribunal has granted a global

compensation of Rs.20,000/- to the claimant. Since, the

Tribunal has held that respondent No.2 is liable to pay only

50%, out of Rs.20,000/- the Tribunal has directed

respondent No.2 to pay Rs.10,000/- with interest. I find no

reason to interfere with the findings given by the Tribunal

inasmuch as the quantum of compensation determined for

claimant in MVC.No..2157/2013. Therefore,

MFA.No.201963/2017 is liable to be dismissed. In the

result, I proceed to pass the following:

ORDER

I. MFA.No.201962/2017 is allowed in part. The

compensation granted to the claimants is

enhanced to Rs.11,81,000/- (as against

Rs.8,25,000/- granted by the Tribunal)

II. Out of Rs.11,81,000/- claimants are entitled for

50% i.e., a sum of Rs.5,90,500/- being the 50%

liability fixed on respondent No.2 together with

c/w MFA.No.201963/2017

interest at 6% p.a. from the date of petition till

the realization (minus the amount already

deposited/paid).